Understanding Exclusive Remedy in Workers Compensation
Oct. 29, 2021
If you’re injured or fall ill at work in Kansas, your medical bills and any lost wages will be covered by the state’s workers compensation system, which is considered the “exclusive remedy” for workplace injuries and illnesses. Under workers compensation, neither employer nor employee is held liable, so it is meant to be a true no-fault system.
Unfortunately, the Kansas Workers Compensation Act (KWCA) of 2011 imposed new deadlines for filing a workers compensation claim and also mandated that a work-related injury must be the “prevailing factor” in any disability claim. The law makes it more difficult to file and win claims.
The subsequent adoption of the sixth edition of the American Medical Association (AMA) publication, “Guides to the Evaluation of Permanent Impairment,” further tied evaluating physicians’ hands by curtailing “physician discretion,” resulting in lower impairment ratings.
The results from this have been unfavorable to workers but beneficial for employers and their workers compensation insurance providers.
At Slape & Howard in Wichita, Kansas, we have been fighting for changes to the KWCA and for a return to the fourth edition of the AMA “Guides” which does allow for physician discretion in making an evaluation.
Meanwhile, if you have a workers compensation claim to file, or if you need to file an appeal over a denial or other adverse decision, contact us immediately wherever you are in Kansas. We know the system inside and out and will fight for your rights.
What Is Exclusive Remedy?
Kansas Statute 44-501(b) states:
“Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act nor shall an employer be liable to any third party for any injury or death of an employee which was caused under circumstances creating a legal liability against a third party and for which workers compensation is payable by such employer.”
In other words, if workers compensation covers your injury or illness at work, then neither the employer nor employee is at fault or can sue the other. If you suffer a disabling back injury at work, for instance, your “exclusive remedy” is to file a workers compensation claim. You cannot sue your employer.
It is possible to file a lawsuit against a third party if that person or entity is responsible for your injury. If a piece of machinery you’re operating at work malfunctions and causes you an injury, you can hold the designer, manufacturer, and/or supplier liable, depending on the circumstances. Likewise, if a driver for a different contractor hits you with their vehicle in a common working area, that driver could be held liable.
Your personal injury lawsuit could net you compensation for both economic damages – medical and rehabilitative expenses and lost wages – and non-economic damages like pain and suffering.
Third-Party Awards and Workers Compensation
However, if you do win your personal injury lawsuit against a third party, Kansas law allows the workers compensation insurer from whom you have been receiving benefits to reclaim those benefits up to the amount of what they’ve paid you or will pay you going forward.
This is known as the principle of subrogation. Subrogation is another term for reimbursement for “insurance loss.”
In fact, if a third party is believed to have been responsible for your injury, the insurance company may initiate legal action itself in order to recover the benefits owed or paid to you, the injured party. Only in the case of you winning a lawsuit against a third party can the insurer come after you for what you’ve been paid in benefits (so long as you haven’t committed fraud).
Contact Slape & Howard for Experienced Legal Guidance
Exclusive remedy means you must rely on workers compensation for injuries and illnesses sustained or contracted at work. With the changes made in 2011 and the adoption of the more stringent AMA “Guides,” filing a claim is not always a straightforward path to obtaining benefits.
We at Slape & Howard have been fighting for the rights of workers in Kansas for a long time, and our experience, knowledge, and resources can help you on the path to obtaining the benefits you’re owed. Contact us immediately if you have a claim or have reached a roadblock.